BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 28/06/2004

Date of Order : 28/04/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

O.P. No. 314/2004

Between

And

O R D E R

A. Rajesh, President.

1. Put it shortly, the case of the complainants is as follows :-

Lured by the representations made by the opposite party on 21-10-1994, the 2^nd complainant booked an apartment (shop No.1 in the ground floor) at Pee Vees Tritron a project which was promised to be constructed and allotted to the complainants by the opposite party. At the time of booking, the 2^nd complainant paid an advance amount of Rs. 1,80,000/- to the opposite party. Thereafter, the complainant paid an amount of Rs. 3,26,000/-. Time and again, the complainants approached the opposite party to get the possession of the apartment, but their requests fell on deaf ears. On 17-11-2003, the complainant issued a registered notice to the opposite party demanding to hand over the possession of the apartment, to which there was no response. Thus, the complainants are before us seeking direction against the opposite party to hand over the possession of the apartment, to pay a compensation of Rs. 7 lakhs and to pay interest @ 18% p.a. for Rs. 5,06,000/- from 21-10-1994 till realisation together with costs of the proceedings. This complaint hence.

2. The version of the opposite party is as follows :-

The complaint is not maintainable, since the 2^nd complainant booked a commercial space/a shop room for commercial purpose. The cause of action has arisen during the year 1994, and the present claim is barred by limitation. The 2^nd complainant booked shop No.1 in the ground floor of 'Peevees Tritron” complex and paid Rs. 1,80,000/- at the time of booking on 21-10-1994. The total cost of construction agreed to be paid was Rs. 13,00,000/-. The 2^nd complainant was also to pay further sums by 12 instalments of Rs. 85,000/- each payable every two months starting from 15-12-1994 and the last instalment of Rs. 20,000/- at the time of handing over the shop room. The complainant committed default and breach and became dis-entitled to the allotment as per the terms. All the defaulters including the 2^nd complainant were requested to finalise the cancellation process and to collect the refund of advance amount paid by him. But the complainants did not respond to the same. There is no deficiency in service or unfair trade practice on the part of the opposite parties. The complaint deserves dismissal.

3. At the threshold, this Forum dismissed the complaint vide order dated 22-09-2004. Against which the complainant preferred an appeal before the Hon'ble State Commission. The Hon'ble State commission vide order in Appeal No. 1091/2004 dated 29-11-2012 remitted the complaint to this Forum for fresh disposal. In furtherance of the above order, the 2^nd complainant was examined as PW1. Exts. A1 to A27 were marked on the side of the complainants. Neither oral nor documentary evidence was adduced by the opposite party. Heard the learned counsel for the parties.

4. The points that arose for consideration are as follows :-

1. Whether the complaint is barred by limitation?

2. Whether the 2^nd complainant is a consumer within the ambit of the Consumer Protection Act?

3. Whether the complainants are entitled to get the possession of the apartment.

4. Whether the complainants are entitled to get a compensation of Rs. 7 lakhs form the opposite party?

5. Whether the complainants are entitled to get interest @ 24% p.a. for Rs. 5,06,000/- from 21-10-1994 till realisation?

6. Whether the complainants are entitled to get costs of the proceedings?

5. Point No. i. :- The learned counsel for the opposite party vehemently and vigorously contended that the complaint is hopelessly barred by limitation, since the limitation period for the complaint started to run from 21-10-1994 and the complainant filed this complaint only on 28-06-2004.

6. The learned counsel for the complainants contended that since the opposite party failed to hand over the possession of the apartment till date the cause of action is continuing in nature and the complaint is filed before this Forum in time. The learned counsel relied on the following decisions rendered by the Apex Judiciary :-

1. K.D. Ajay Khosh Vs. Alliance Habitat & Real Estate (India) Pvt. Ltd. & Anr. II (2013) CPJ 20 (Ker).

2. Titus V.I. Vs. Apple A Day Properties Pvt. Ltd. I (2014) CPJ 209 (Ker.)

3. Ravi Developments, Builder & Developers & Ors. Vs. Jayantibhai V. Ranka & Anr. I (2014) CPJ 535 (NC).

4. Meerut Development Authority Vs. Mukesh Kumar Gupta IV (2012) CPJ 12 (SC).

7. It is not in dispute that on 21-10-1994, the 2^nd complainant booked shop No.1 in the ground floor of the project of the opposite party by paying Rs. 1,80,000/- as evident from Ext. A4. It is also not in dispute that neither the opposite party did hand over the said shop room to the 2^nd complainant nor did they refund the advance amount.

8. The Hon'ble National Consumer Disputes Redressal Commission in Ravi Developments, Builder & Developers & Ors. Vs. Jayantibhai V. Ranka & Anr. (Supra), held in para 10 as follows :-

“There is nothing on record to show that petitioners till date, have executed any regular agreement for sale as per above allotment letter. Be that as if may, it is an admitted fact that the petitioners had revived a sum of Rs. 3,32,000 from respondent No.1 as well as respondent No. 2, though in the year 2002, a sum of Rs. 1,00,000 was refunded to respondent No. 2 by the petitioners. However, no explanation been given by the petitioners as to why the bungalow in question in view of allotment letter dated 20-1-1995 has not been allotted to respondent No.1 and why regular agreement for sale has not been executed so far. Another aspect is that the petitioners after alleged termination of the allotment, have accepted Rs. 1,00,000 from respondent Nos. 1 and 2 jointly on 1-8-1996. Thereafter, again petitioners had received a further sum of Rs. 25,000 jointly from respondent Nos. 1 and 2, on 18-11-1996, then where was the occasion for them to accept further payment in the months of August and November, 1996. This shows malafide act on the part of the petitioners. Further, petitioners have not handed over the possession of the bungalow in question so far nor have refunded the amount paid by respondent No.1. Certainly, there is a continuous cause of action in favour of respondent No.1.”

9. The Hon'ble Apex Court in Meerut Development Authority Vs. Mukesh Kumar Gupta (Supra), held in para 4 as under :-

“In our view, the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because, he had recurring cause for filing a complaint by the matter of non-delivery of possession of the plot.”

10. According to the Hon'ble Supreme Court, though the claim for non- compliance of the agreement made between the purchaser and the builder, having been filed beyond 2 years provided under Section 24 A of the Consumer Protection Act, the 'cause of action', to be treated as 'continuing cause of action', and therefore, the claim was not beyond time (Lata Constructions Vs. Ramesh Chandra Ramniklal Shah (Dr.) AIR 2000 SC 380.)

11. The dictum laid down by the Hon'ble National Consumer Disputes Redressal Commission and the Hon'ble Supreme Court leaves no room for doubt that this complaint is barred by limitation. Hence repelled.

12. Point No. ii. :- The Hon'ble National Consumer Disputes Redressal Commission in Vijaya Bank Vs. Money care Finanz Limited. III (2012) CPJ 373 (NC), held as follows :-

“As regard, the other two jurisdictional issues flowing from the amendments to the Act by Act 62 of 2002, it is settled law now that these amendments are prospective, ie, effective only from 15-03-2003 and anything prior to that date would be governed by the corresponding (prior- to-amendment) provisions of the Act. Thus viewed, the mischief of the amendment to Section 2 (1) (d)(ii) barring a person availing of any service for a consideration for a “commercial purpose” from the status of “consumer” under the Act would not affect the present respondent nor would the State Commission's pecuniary jurisdiction to adjudicate on the complaint be altered because the dispute was of 1997, ie, much prior to the bunch of amendments referred to by the appellant. We, therefore, agree with Mr. Mathew's submissions on these aspects too but refrain from making any observation regarding the other point of his that the appellant could not be heard to raise these questions of law at the appellate stage, not having done so at before the State Commission.”

13. In view of the above, even if the 2^nd complainant had purchased the shop room for commercial purpose, he is a consumer within the ambit of the Consumer Protection Act. Since, the exclusion clause in Section 2 (1)(d)(ii) came into force with effect from 15-03-2003 and would not have any retrospective effect. So the contention that in 1994, the complainant had purchased the shop room for commercial purpose and the complainant is not a consumer within the purview of the Consumer Protection Act is liable to be rejected.

14. Point Nos. iii. to vi. :- The complainants stated that they paid a total sum of Rs. 5,06,000/- to the opposite party towards the total sale consideration of Rs. 6,50,000/- for the flat. However, Exts. A4 and A25 series go to show that the 2^nd complainant paid a total sum of Rs. 3,41,500/- only to the opposite party. The opposite party stated that the total sale consideration was Rs. 13,00,000/-. There is no agreement between the parties in black and white. The 2^nd complainant who was examined as PW1 deposed that the opposite party demanded Rs. 6.5 lakhs in white money and Rs. 6.5 lakhs in black money to enter into a written agreement. We can swallow the above statement only with a pinch of salt, especially since the same does not find a place in the complaint. Admittedly, the 2^nd complainant has not paid the full sale consideration to the opposite party, it is pertinent to note that the opposite party has nowhere stated the date of completion of the construction of the apartment allotted to the complainant. Neither party did take any steps to prove the same. It is also to be noted that the opposite party failed to issue any letter to the 2^nd complainant regarding the cancellation of the oral agreement entered into between them. The above conduct of the opposite party amounts to deficiency in their service. In the above circumstances, we think that an order directing the opposite party to hand over possession of the apartment to the complainant would lead to miscarriage of justice. Accordingly, we are only to hold that the 2^nd complainant is entitled to get refund of the amounts as per Exts. A4 and A25 series from the opposite party with interest @ 12% p.a. from the date of each receipt till realisation.

15. The primary grievance of the 2^nd complainant having been met adequately, we refrain from awarding compensation and costs of the proceedings. Rejected hence.

16. In the result, we partly allow the complaint and direct that the opposite party shall refund Rs. 3,41,500/- (the amounts as per Exts. A4 and A25 series) to the 2^nd complainant with interest @ 12% p.a. from the date of each receipt till realisation.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 28^th day of April 2014.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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